JUDGMENT Honble Mrs. Poonam Srivastava, J.—The instant second appeal was filed beyond time. After the delay was condoned, record was summoned and it was stipulated between the respective counsels that the matter will be decided finally at the stage of admission itself since the appeal was filed on 4.9.1984 and 23 years was spent for effecting service of the application for condonation of delay. The lower court record is available. 2. On 13.3.2008 after hearing the counsel for the appellants Sri M.K. Gupta and Sri Mayank Agrawal and the counsel for respondent Sri A.K. Trivedi, following substantial question of law was formulated which arises in the instant second appeal : “Whether there was any evidence documentary or otherwise, to establish that there was a contract of tenancy between the plaintiff and defendant?” 3. On the request of counsel for the respondents, the appeal was adjourned for the next day and 14.3.2008 was fixed for arguments. On 14.3.2008 when the appeal came up for arguments, once again a request was made on behalf of the respondents to adjourn the case to 17.3.2008 for engaging a senior counsel. The request was accepted though there was an objection on the part of the counsel for the appellant. Today, when the appeal was called out for arguments, counsel for the respondents Sri A.K. Trivedi Advocate was not present and, therefore, the case was directed to be taken up after lunch. A written notice was given by Sri Mayank Agrawal to Sri A.K. Trivedi Advocate. It appears that there was an endorsement of refusal to accept the notice. The said notice dated 17.3.2008 with a noting made by Sri Mayank Agrawal Advocate ‘refused to accept’ dt. 17.3.2008, time 1.30 P.M. has been placed before me and the said notice is kept on record. 4. Heard Sri M.K. Gupta and Sri Mayank Agrawal, learned counsels for the appellant. 5. The disputed accommodation in the instant appeal is one Kothari, which is outhouse of premises No. 15, Clive Road, Allahabad. The entire house situated in the aforesaid premises was let out to one Mr. W.H. Tuck, who was one of the tenants of the plaintiff. The disputed premises in occupation of Mr. W.H. Tuck was released in favour of the plaintiff who took possession and now the sons of original owner are in occupation. The entire house situated in the aforesaid premises was let out to one Mr. W.H. Tuck, who was one of the tenants of the plaintiff. The disputed premises in occupation of Mr. W.H. Tuck was released in favour of the plaintiff who took possession and now the sons of original owner are in occupation. The contesting defendant-respondents made a request to the plaintiff to allow them to continue in occupation of the outhouse which they were permitted without payment of any licence fee. The case of the plaintiff is that the defendant-respondents continued to be in possession of outhouse as a licensee without any licence fee after it was released. The plaintiff later asked the defendants to vacate the house. The request was not accepted and therefore having no option the plaintiff terminated the licence on 26.8.1980 by means of a notice dated 11.8.1980. The defendant-respondents refused to vacate the house even after the notice, consequently Original Suit No. 419 of 1981 was instituted in the court of 7th Additional Munsif, Allahabad for eviction. The defendants filed written statement and claimed themselves to be a tenant of one room, verandah and open sahan land measuring 20 x 10 on the southern side and 10 x 10 on the western side of house No. 15 since 1963 and also that he was paying Rs. 5/- per month as rent, which was later increased to Rs. 15/- per month in the year 1975. The defendants specifically denied that they were in occupation of the disputed Kothari in the capacity of licensee and that the suit was not maintainable for want of jurisdiction. The trial court framed seven issues. Issue Nos. 2 and 3 are material for decision of the instant appeal which are quoted below : Issue No. 2 : “ Whether the defendant was licensee of the plaintiff of the Kothari in dispute ?” Issue No. 3 : “Whether the defendants are tenants of the plaintiff in Kothari in question ?” 6. All the issues were decided together and the trial Court decided the aforesaid two issues in favour of the plaintiff and concluded that the defendants were licensee and their initial occupation was only on behalf of the erstwhile tenant of W.H. Tuck. After they vacated the accommodation, the plaintiff allowed the defendants to remain in occupation as a licensee and the defendants’ possession was only permissive. After they vacated the accommodation, the plaintiff allowed the defendants to remain in occupation as a licensee and the defendants’ possession was only permissive. The trial Court recorded a specific finding that the defendants were not able to establish their claim that they were not in occupation in the capacity of tenant but a licensee. The trial court also awarded damages at the rate of Rs. 15/- per month w.e.f. 26.8.1980 while decreeing the suit on 24.1.1983. The defendants filed civil appeal No. 173 of 1983 before the 1st Additional District Judge, Allahabad. The appeal was allowed on 24.2.1984, against which the instant second appeal has come up before this Court. 7. I have heard the learned counsel for the appellant and it is apparent that only question for decision in the instant appeal is whether the defendant was in occupation of the disputed Kothari as licensee or as a tenant ? Exhibit-1 was a letter signed by Nabbu Ram, defendant No. 1 dated 1.12.1976 where it was admitted that the defendant was living in a room on behalf of Sri W.H. Tuck which was vacated but the defendant was not able to .find out any accommodation, therefore, he may be permitted to continue in occupation at the rate of Rs. 15/- per month. The defendant had denied his signature on the said letter. 8. Learned-counsel for the appellant has submitted that even if the letter is ignored even then there is nothing on record to establish that the defendants were in occupation as a tenant. There is no an iota of evidence to prove the tenancy rights. 9. I have gone through the entire record and I do not find any document such as contract of tenancy, any agreement whatsoever, letter of allotment, payment of rent etc. The contention raised before the trial Court on behalf of the defendant that his occupation of the Kothari stands regularized after Amending Act No. 28 of 1976 was enacted under Section 14 of Act No. 13 of 1972 w.e.f. 5.7.1976. This argument was also advanced before the lower appellate Court, which was discarded while allowing the appeal. The contention raised before the trial Court on behalf of the defendant that his occupation of the Kothari stands regularized after Amending Act No. 28 of 1976 was enacted under Section 14 of Act No. 13 of 1972 w.e.f. 5.7.1976. This argument was also advanced before the lower appellate Court, which was discarded while allowing the appeal. The finding given by the lower appellate court was on the basis of adverse presumption under Section 114 of the Evidence Act merely because the plaintiff did not appear as a witness and, therefore, using his strong common sense, the court below allowed the appeal as he was able to read between the lines and came to a conclusion that the witnesses were suppressing the truth. I have carefully gone through the judgment of the lower appellate Court and failed to agree with the reasonings and conclusions arrived at. The presumption raised against the appellant is not sufficient to set aside the findings of the trial Court only because the plaintiff failed to appear in the witness box. 10. The lower appellate Court cannot be accepted the inference drawn against the plaintiff-appellant for not examining himself. It is submitted that Mahesh Chand is the son of the plaintiff-appellant. There is a specific pleading in paragraph 3 of the plaint that main bungalow is in occupation of son of the plaintiff. In such circumstances, the testimony of the plaintiffs son as P.W. 1 could not be brushed aside nor any adverse inference can be drawn against the plaintiff for not examining himself. 11. The lower appellate Court had further held that letter dated 1.12.1976 allegedly written by defendant No. 1 has not been proved in accordance with law. Even if the said letter is ignored, it will have no impact on the merits of the instant case as it was the burden of the defendant-respondents to prove the contract of tenancy. In similar circumstances, the Apex Court in A.I.R. 1996 S.C. 223 had held as under : “Since the claim of the appellant that he came into possession in the year 1968-69 under oral lease was not conclusively accepted and there is no proof that the landlord had accepted any rent, the appellant is a trespasser on the land. The suit was filed for injunction against the appellant. The burden is on the appellant to establish his lawful possession. The suit was filed for injunction against the appellant. The burden is on the appellant to establish his lawful possession. Except the oral tenancy, no other evidence was brought on record. Entries in the revenue records cannot establish lawful possession, when admittedly, no notice was given to the respondent before making those entries.” 12. The trial Court has recorded a positive finding that the defendant was in occupation in the capacity of licensee and once licence was revoked, the decree for eviction was inevitable. The claim of tenancy right by the defendant is without any basis or a single document to support the assertions made in the written statement. The entire record do not show a single rent receipt, any such letter or agreement to establish the claim of tenancy. It is also noteworthy that once the notice to vacate the premises was served on the defendant, he had made no effort to deposit rent under Section 30 of U.P. Act No. 13 of 1972. In the event, the contention raised on behalf of the defendant is accepted then if there was a prospect of eviction, the defendant should have made effort to deposit rent to save his eviction. Perusal of the entire record, it is evident that the possession of the defendant-respondent was only permissive and there was nothing to substantiate that there was any contract of tenancy. The substantial question of law raised in this appeal on which learned counsel for the appellant was heard, stands completely answered in affirmative. I am in agreement with the judgment of the trial ourt and the submissions made on behalf of the plaintiff-appellant and hold that the judgment and decree of the lower appellate Court dated 24.2.1984 suffers materially and he has committed a substantial error of law. Occupation of suit property by defendant-respondents is illegal. The licence was revoked under Section 61 of the Indian Easement Act, 1882 and thus the respondents have no right to continue in possession. The judgment and decree of the lower appellate court is accordingly set at naught. The appeal is allowed. The suit for eviction is decreed and the defendants are liable to deposit damages at the rate of Rs. 15/- per month w.e.f. 26.8.1980 till the date possession is handed over to the plaintiff-appellant. There shall be no order as to cost. 13. The appeal is allowed. The suit for eviction is decreed and the defendants are liable to deposit damages at the rate of Rs. 15/- per month w.e.f. 26.8.1980 till the date possession is handed over to the plaintiff-appellant. There shall be no order as to cost. 13. Office is directed to send back the record to the lower Court. ————